Rosenbloom v. Metromedia

403 U.S. 29

Case Year: 1971

Case Ruling: 5-3, Affirmed

Opinion Justice: Brennan

More Information

Concurring Opinions

Dissenting Opinions

Court Opinion Joiner(s):

Black, Blackmun, Burger, White


1st Concurring Opinion

Author: Black


1st Dissenting Opinion

Author: Marshall

Joiner(s): Stewart

2nd Concurring Opinion

Author: White


2nd Dissenting Opinion

Author: Harlan


3rd Concurring Opinion



3rd Dissenting Opinion



Other Concurring Opinions:


In Curtis Publishing Company v. Butts and Associated Press v. Walker (1967), the Supreme Court held that those in the public eye would have to meet the New York Times test to win their libel cases. If these cases helped clarify some aspects of New York Times, they also focused attention on this question: For purposes of libel law, how far does the "public figure" definition stretch? The Time, Inc. v. Hill ruling further complicated matters by taking a standard of proof for libel actions and applying it to invasion of privacy claims and by expanding the coverage of that standard of proof to matters of public interest. Had the Court totally blurred the distinction between public figures and private citizens? What constituted a matter of public interest? In Rosenbloom v. Metromedia, the Court attempted to provide some answers. At issue in Rosenbloom were the actions of a Philadelphia police captain who, in an attempt to enforce his city's obscenity laws, purchased magazines from more than twenty city newsstands. Concluding that the magazines were obscene, he directed officers to arrest the vendors. As police were carrying out the order, they encountered George Rosenbloom, who was delivering adult magazines to one of the stands. They arrested him and obtained a warrant to search his home and warehouse. The search led to the seizure of a large number of allegedly obscene materials, and the police captain reported this to several radio stations and newspapers. In response, a Metromedia-owned station, WIP, broadcast a series of reports identifying Rosenbloom and indicating that the police had searched both his home and warehouse and had seized approximately four thousand volumes of allegedly obscene material. However, in at least two of the broadcasts, the station failed to qualify the seized material as "reportedly" or "allegedly" obscene. In a later broadcast the station referred to a lawsuit in which Rosenbloom was the plaintiff as an action by a "smut distributor" to force local officials to "lay off the smut literature racket." Rosenbloom initiated a libel action against the station, arguing that his books were not obscene; in fact, a jury had acquitted him on those charges. WIP offered a defense of truth, but the jury found for Rosenbloom, awarding him $750,000 in damages.

The Court reversed the decision of the lower court, but could not agree on a rationale for doing so.



In a series of cases beginning with New York Times Co. v. Sullivan (1964), the Court has considered the limitations upon state libel laws imposed by the constitutional guarantees of freedom of speech and of the press. New York Timesheld that in a civil libel action by a public official against a newspaper those guarantees required clear and convincing proof that a defamatory falsehood alleged as libel was uttered with "knowledge that it was false or with reckless disregard of whether it was false or not." The same requirement was later held to apply to "public figures" who sued in libel on the basis of alleged defamatory falsehoods. The several cases considered since New York Times involved actions of "public officials" or "public figures," usually, but not always, against newspapers or magazines. Common to all the cases was a defamatory falsehood in the report of an event of "public or general interest." The instant case presents the question whether the New York Times' knowing-or-reckless-falsity standard applies in a state civil libel action brought not by a "public official" or a "public figure" but by a private individual for a defamatory falsehood uttered in a news broadcast by a radio station about the individual's involvement in an event of public or general The District Court for the Eastern District of Pennsylvania held that the New York Timesstandard did not apply and that Pennsylvania law determined respondent's liability in this diversity case.... The Court of Appeals for the Third Circuit held that the New York Times standard did apply and reversed the judgment for damages awarded to petitioner by the jury.... We granted certiorari, 397 U.S. 904 (1970). We agree with the Court of Appeals and affirm that court's judgment....

Petitioner concedes that the police campaign to enforce the obscenity laws was an issue of public interest, and, therefore, that the constitutional guarantees for freedom of speech and press imposed limits upon Pennsylvania's power to apply its libel laws to compel respondent to compensate him in damages for the alleged defamatory falsehoods broadcast about his involvement. The narrow question he raises is whether, because he is not a "public official" or a "public figure" but a private individual, those limits required that he prove that the falsehoods resulted from a failure of respondent to exercise reasonable care, or required that he prove that the falsehoods were broadcast with knowledge of their falsity or with reckless disregard of whether they were false or not. That question must be answered against the background of the functions of the constitutional guarantees for freedom of expression....

Self-governance in the United States presupposes far more than knowledge and debate about the strictly official activities of various levels of government.... "The guarantees for speech and press are not the preserve of political expression or comment upon public affairs." Time, Inc. v. Hill, (1967). "Freedom of discussion, if it would fulfill its historic function in this nation, must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period."...

Although the limitations upon civil libel actions, first held in New York Times to be required by the First Amendment, were applied in that case in the context of defamatory falsehoods about the official conduct of a public official, later decisions have disclosed the artificiality, in terms of the public's interest, of a simple distinction between "public" and "private" individuals or institutions:

"Increasingly in this country, the distinctions between governmental and private sectors are blurred.... In many situations, policy determinations which traditionally were channeled through formal political institutions are now originated and implemented through a complex array of boards, committees, commissions, corporations, and associations, some only loosely connected with the Government. This blending of positions and power has also occurred in the case of individuals so that many who do not hold public office at the moment are nevertheless intimately involved in the resolution of important public questions....

If a matter is a subject of public or general interest, it cannot suddenly become less so merely because a private individual is involved, or because in some sense the individual did not "voluntarily" choose to become involved. The public's primary interest is in the event; the public focus is on the conduct of the participant and the content, effect, and significance of the conduct, not the participant's prior anonymity or notoriety. The present case illustrates the point. The community has a vital interest in the proper enforcement of its criminal laws, particularly in an area such as obscenity where a number of highly important values are potentially in conflict: the public has an interest both in seeing that the criminal law is adequately enforced and in assuring that the law is not used unconstitutionally to suppress free expression. Whether the person involved is a famous large-scale magazine distributor or a "private" businessman running a corner newsstand has no relevance in ascertaining whether the public has an interest in the issue. We honor the commitment to robust debate on public issues, which is embodied in the First Amendment, by extending constitutional protection to all discussion and communication involving matters of public or general concern, without regard to whether the persons involved are famous or anonymous....

We turn then to the question to be decided. Petitioner's argument that the Constitution should be held to require that the private individual prove only that the publisher failed to exercise "reasonable care" in publishing defamatory falsehoods proceeds along two lines. First, he argues that the private individual, unlike the public figure, does not have access to the media to counter the defamatory material and that the private individual, unlike the public figure, has not assumed the risk of defamation by thrusting himself into the public arena. Second, petitioner focuses on the important values served by the law of defamation in preventing and redressing attacks upon reputation.

We have recognized the force of petitioner's arguments, ... and we adhere to the caution expressed in that case against "blind application" of the New York Times standard. Analysis of the particular factors involved, however, convinces us that petitioner's arguments cannot be reconciled with the purposes of the First Amendment, with our cases, and with the traditional doctrines of libel law itself. Drawing a distinction between "public" and "private" figures makes no sense in terms of the First Amendment guarantees. The New York Times standard was applied to libel of a public official or public figure to give effect to the Amendment's function to encourage ventilation of public issues, not because the public official has any less interest in protecting his reputation than an individual in private life. While the argument that public figures need less protection because they can command media attention to counter criticism may be true for some very prominent people, even then it is the rare case where the denial overtakes the original charge. Denials, retractions, and corrections are not "hot" news, and rarely receive the prominence of the original story. When the public official or public figure is a minor functionary, or has left the position that put him in the public eye, ... the argument loses all of its force. In the vast majority of libels involving public officials or public figures, the ability to respond through the media will depend on the same complex factor on which the ability of a private individual depends: the unpredictable event of the media's continuing interest in the story. Thus the unproved, and highly improbable, generalization that an as yet undefined class of "public figures" involved in matters of public concern will be better able to respond through the media than private individuals also involved in such matters seems too insubstantial a reed on which to rest a constitutional distinction. Furthermore, in First Amendment terms, the cure seems far worse than the disease. If the States fear that private citizens will not be able to respond adequately to publicity involving them, the solution lies in the direction of ensuring their ability to respond, rather than in stifling public discussion of matters of public concern.

Further reflection over the years since New York Times was decided persuades us that the view of the "public official" or "public figure" as assuming the risk of defamation by voluntarily thrusting himself into the public eye bears little relationship either to the values protected by the First Amendment or to the nature of our society.... Voluntarily or not, we are all "public" men to some degree. Conversely, some aspects of the lives of even the most public men fall outside the area of matters of public or general concern.... Thus, the idea that certain "public" figures have voluntarily exposed their entire lives to public inspection, while private individuals have kept theirs carefully shrouded from public view is, at best, a legal fiction. In any event, such a distinction could easily produce the paradoxical result of dampening discussion of issues of public or general concern because they happen to involve private citizens while extending constitutional encouragement to discussion of aspects of the lives of "public figures" that are not in the area of public or general concern.

General references to the values protected by the law of libel conceal important distinctions. Traditional arguments suggest that libel law protects two separate interests of the individual: first, his desire to preserve a certain privacy around his personality from unwarranted intrusion, and, second, a desire to preserve his public good name and reputation.... The individual's interest in privacy--in preventing unwarranted intrusion upon the private aspects of his life--is not involved in this case, or even in the class of cases under consideration, since, by hypothesis, the individual is involved in matters of public or general concern. In the present case, however, petitioner's business reputation is involved, and thus the relevant interests protected by state libel law are petitioner's public reputation and good name.

These are important interests....

Moreover, we ordinarily decide civil litigation by the preponderance of the evidence. Indeed, the judge instructed the jury to decide the present case by that standard. In the normal civil suit where this standard is employed, "we view it as no more serious in general for there to be an erroneous verdict in the defendant's favor than for there to be an erroneous verdict in the plaintiff's favor."... In libel cases, however, we view an erroneous verdict for the plaintiff as most serious. Not only does it mulet the defendant for an innocent misstatement--the three-quarter-million-dollar jury verdict in this case could rest on such an error--but the possibility of such error, even beyond the vagueness of the negligence standard itself, would create a strong impetus toward self-censorship, which the First Amendment cannot tolerate. These dangers for freedom of speech and press led us to reject the reasonable-man standard of liability as "simply inconsistent" with our national commitment under the First Amendment when sought to be applied to the conduct of a political campaign.... The same considerations lead us to reject that standard here.

We are aware that the press has, on occasion, grossly abused the freedom it is given by the Constitution. All must deplore such excesses. In an ideal world, the responsibility of the press would match the freedom and public trust given it. But from the earliest days of our history, this free society, dependent as it is for its survival upon a vigorous free press, has tolerated some abuse....



I concur in the judgment of the Court for the reasons stated in my concurring opinion in New York Times Co. v. Sullivan(1964), in my concurring and dissenting opinion in Curtis Publishing Co. v. Butts (1967).... I agree of course that First Amendment protection extends to "all discussion and communication involving matters of public or general concern, without regard to whether the persons involved are famous or anonymous."... However, in my view, the First Amendment does not permit the recovery of libel judgments against the news media even when statements are broadcast with knowledge they are false. As I stated in Curtis Publishing Co. v. Butts "[I]t is time for this Court to abandon New York Times Co. v. Sullivanand adopt the rule to the effect that the First Amendment was intended to leave the press free from the harassment of libel judgments."...


Under existing law the First Amendment is deemed to permit recoveries for damaging falsehoods published about public officials or public figures only if the defamation is knowingly or recklessly false. But until today the First Amendment has not been thought to prevent citizens who are neither public officials nor public figures from recovering damages for defamation upon proving publication of a false statement injurious to their reputation. There has been no necessity to show deliberate falsehood, recklessness, or even negligence. The Court has now decided that the First Amendment requires further restrictions on state defamation laws. MR. JUSTICE BRENNAN and two other members of the Court would require proof of knowing or reckless misrepresentation of the facts whenever the publication concerns a subject of legitimate public interest, even though the target is a "private" citizen. Only residual areas would remain in which a lower degree of proof would obtain. Three other members of the Court also agree that private reputation has enjoyed too much protection and the media too little. But in the interest of protecting reputation, they would not roll back state laws so far. They would interpret the First Amendment as proscribing liability without fault and would equate non-negligent falsehood with faultless conduct. The burden of the damaging lie would be shifted from the media to the private citizen unless the latter could prove negligence or some higher degree of fault. They would also drastically limit the authority of the States to award compensatory and punitive damages for injury to reputation. MR. JUSTICE BLACK, consistently with the views that he and MR. JUSTICE DOUGLAS have long held, finds no room in the First Amendment for any defamation recovery whatsoever.

Given this spectrum of proposed restrictions on state defamation laws and assuming that MR. JUSTICE BLACK and MR. JUSTICE DOUGLAS will continue in future cases to support the severest of the restrictions, it would seem that at least five members of the Court would support each of the following rules:

For public officers and public figures to recover for damage to their reputations for libelous falsehoods, they must prove either knowing or reckless disregard of the truth. All other plaintiffs must prove at least negligent falsehood, but if the publication about them was in an area of legitimate public interest, then they too must prove deliberate or reckless error. In all actions for libel or slander, actual damages must be proved, and awards of punitive damages will be strictly limited.

For myself, I cannot join any of the opinions filed in this case. Each of them decides broader constitutional issues and displaces more state libel law than is necessary for the decision in this case. As I have said, MR. JUSTICE BRENNAN would extend the privilege enunciated in New York Times Co. v. Sullivan (1964), to publications upon any "subject of public or general interest."... He would thereby extend the constitutional protection to false and damaging, but non-malicious, publications about such matters as the health and environmental hazards of widely used manufactured products the mental and emotional stability of executives of business establishments, and the racial and religious prejudices of many groups and individuals. All of these are of course, subjects of real concern, and arguments for placing them within the scope ofNew York Times are by no means frivolous.

For MR. JUSTICE MARSHALL and MR. JUSTICE HARLAN, MR. JUSTICE BRENNAN's opinion is both too severe and too limited. They would make more sweeping incursions into state tort law but purportedly with less destructive weapons. They would permit suit by some plaintiffs barred under MR. JUSTICE BRENNAN's opinion, but would require all plaintiffs to prove at least negligence before any recovery would be allowed.

I prefer at this juncture not to proceed on such a broad front. I am quite sure that New York Times Co. v. Sullivan was the wiser course, but I am unaware that state libel laws with respect to private citizens have proved a hazard to the existence or operations of the communications industry in this country. Some members of the Court seem haunted by fears of self-censorship by the press and of damage judgments that will threaten its financial health. But technology has immeasurably increased the power of the press to do both good and evil. Vast communication combines have been built into profitable ventures. My interest is not in protecting the treasuries of communicators but in implementing the First Amendment by insuring that effective communication which is essential to the continued functioning of our free society. I am not aware that self-censorship has caused the press to tread too gingerly in reporting "news" concerning private citizens and private affairs or that the reputation of private citizens has received inordinate protection from falsehood. I am not convinced that we must fashion a constitutional rule protecting a whole range of damaging falsehoods and so shift the burden from those who publish to those who are injured.

I say this with considerable deference since all my Brethren have contrary views. But I would not nullify a major part of state libel law until we have given the matter the most thorough consideration and can articulate some solid First Amendment grounds based on experience and our present condition. As it is, today's experiment rests almost entirely on theoretical grounds and represents a purely intellectual derivation from what are thought to be important principles of tort law as viewed in the light of the primacy of the written and spoken word....

I would ... hold that in defamation actions, absent actual malice as defined in New York Times Co. v. Sullivan, the First Amendment gives the press and the broadcast media a privilege to report and comment upon the official actions of public servants in full detail, with no requirement that the reputation or the privacy of an individual involved in or affected by the official action be spared from public view. Since respondent Metro-media did nothing more in the instant case, I join in holding its broadcasts privileged. I would not, however, adjudicate cases not now before the Court.


Here, unlike the other cases involving the New York Times doctrine, we are dealing with an individual who held no public office, who had not taken part in any public controversy, and who lived an obscure private life. George Rosenbloom, before the events and reports of the events involved here, was just one of the millions of Americans who live their lives in obscurity.

The protection of the reputation of such anonymous persons "from unjustified invasion and wrongful hurt reflects no more than our basic concept of the essential dignity and worth of every human being--a concept at the root of any decent system of ordered liberty."... But the concept of a citizenry informed by a free and unfettered press is also basic to our system of ordered liberty. Here these two essential and fundamental values conflict. The plurality has attempted to resolve the conflict by creating a conditional constitutional privilege for defamation published in connection with an event that is found to be of "public or general concern." The condition for the privilege is that the defamation must not be published "with knowledge that it was false or with reckless disregard of whether it was false or not." I believe that this approach offers inadequate protection for both of the basic values that are at stake.

In order for particular defamation to come within the privilege there must be a determination that the event was of legitimate public interest. That determination will have to be made by courts generally and, in the last analysis, by this Court in particular. Courts, including this one, are not anointed with any extraordinary prescience. But, assuming that under the rule announced by MR. JUSTICE BRENNAN for the plurality, courts are not simply to take a poll to determine whether a substantial portion of the population is interested or concerned in a subject, courts will be required to somehow pass on the legitimacy of interest in a particular event or subject; what information is relevant to self-government.... The danger such a doctrine portends for freedom of the press seems apparent.

The plurality's doctrine also threatens society's interest in protecting private individuals from being thrust into the public eye by the distorting light of defamation. This danger exists since all human events are arguably within the area of "public or general concern." My Brother BRENNAN does not try to provide guidelines or standards by which courts are to decide the scope of public concern. He does, however, indicate that areas exist that are not the proper focus of public concern, and cities Griswold v. Connecticut (1965). But it is apparent that in an era of a dramatic threat of overpopulation and one in which previously accepted standards of conduct are widely heralded as outdated, even the intimate and personal concerns with which the Court dealt in that case cannot be said to be outside the area of "public or general concern."

The threats and inadequacies of using the plurality's conditional privilege to resolve the conflict between the two basic values involved here have been illustrated by the experience courts have had in trying to deal with the right of privacy.... The authors of the most famous of all law review articles recommended that no protection be given to privacy interests when the publication dealt with a "matter which is of public or general interest." Warren & Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193, 214 (1890). Yet cases dealing with this caveat raise serious questions whether it has substantially destroyed the right of privacy as Warren and Brandeis envisioned it. For example, the publication of a picture of the body of plaintiff's daughter immediately after her death in an automobile accident was held to be protected.... And the publication of the details of the somewhat peculiar behavior of a former child prodigy, who had a passion for obscurity, was found to involve a matter of public concern....

In New York Times the Court chose to balance the competing interests by seeming to announce a generally applicable rule. Here it is apparent that the general rule announced cannot have general applicability. The plurality's conditional privilege approach, when coupled with constitutionalizing of the factfinding process, ... results in the adoption of an ad hoc balancing of the two interests involved. The Court is required to weigh the nuances of each particular circumstance on its scale of values regarding the relative importance of society's interest in protecting individuals from defamation against the importance of a free press. This scale may arguably be a more finely tuned instrument in a particular case. But whatever precision the ad hoc method supplies is achieved at a substantial cost in predictability and certainty. Moreover, such an approach will require this Court to engage in a constant and continuing supervision of defamation litigation throughout the country....

Undoubtedly, ad hoc balancing may be appropriate in some circumstances that involve First Amendment problems.... But in view of the shortcomings of my Brother BRENNAN's test, defamation of a private individual by the mass media is not one of the occasions for unfettered ad hoc balancing. A generally applicable resolution is available that promises to provide an adequate balance between the interest in protecting individuals from defamation and the equally basic interest in protecting freedom of the press....

I believe that the appropriate resolution of the clash of societal values here is to restrict damages to actual losses.... Of course, damages can be awarded for more than direct pecuniary loss but they must be related to some proved harm.... If awards are so limited in cases involving private individuals--persons first brought to public attention by the defamation that is the subject of the lawsuit--it will be unnecessary to rely ... on somewhat elusive concepts of the degree of fault, and unnecessary, for constitutional purposes, to engage in ad hoc balancing of the competing interests involved. States would be essentially free to continue the evolution of the common law of defamation and to articulate whatever fault standard best suits the State's need.

The only constitutional caveat should be that absolute or strict liability, like uncontrolled damages and private fines, cannot be used. The effect of imposing liability without fault is to place "the printed, written or spoken word in the same class with the use of explosives or the keeping of dangerous animals."... Clearly, this is inconsistent with the concepts of freedom of the press.

Thus in this case I would reverse the judgment of the Court of Appeals for the Third Circuit and remand the case for a determination of whether Mr. Rosenbloom can show any actual loss.